COURT NOMINATIONS AND PRESIDENTIAL CRONYISM

Merlo J. Pusey

The nomination of Justices of the Supreme Court is one of the most awesome responsibilities of the President of the United States. Most of our Presidents have so regarded it, but a few have yielded to the temptation of using vacancies on the Court to reward friends or to pay political debts. Fortunately those instances have been sufficiently rare to attract special attention.

George Washington set an admirable example in making the first appointments to the Supreme Bench. In a letter to Chancellor Robert R. Livingston of New York he had set forth his revolve to choose judges "with a sole view to the public good" and to "bring forward those who, upon every consideration and from the best information I can obtain, will in my judgment be most likely to answer that great end."1 The first Chief Justice of the United States, he felt, must be not only a great lawyer but also a great statesman, executive and leader. In his view John Jay of New York met this test, although he was only in his forty-fourth year, because of his diplomatic and political career and his two years as Chief Justice of New York.

Washington's nominees to the Court did include one personal friend, Robert Hanson Harrison, but Harrison had been chief judge of Maryland's General Court for eight years. He did not actually serve, although he appears to have accepted his commission at the President's urging (See "Welcome Back, Justice Harrison?," Judicial Potpourri, Yearbook 1979). Three members of the first Supreme Court had been participants in the Convention of 1787 and signers of the Constitution: John Blair, who had also served ten years in the state courts of Virginia; John Rutledge, who had been governor of South Carolina and a judge of the State Court of Chancery for six years; and James Wilson, who was deemed the best qualified lawyer in Pennsylvania. The other members of the first Court were William Cushing, who had been chief justice of the Massachusetts Supreme Judicial Court and a leader in the state convention which ratified the Constitution, and James Iredell, who had been a judge and attorney general in North Carolina and also a leader in his state's ratification of the Constitution. Later, Washington named to the Court two other members of the Constitutional Convention--William Paterson (former senator and Governor of New Jersey) and Oliver Ellsworth.

Washington discovered, however, that good intentions did not always save him from disappointment and embarrassment in regard to the Supreme Court. When Jay resigned, Washington tried to induce his former Secretary of the Treasury, Alexander Hamilton, to accept the chief justiceship. On Hamilton's refusal, Washington acquiesced in a bid for the post from John Rutledge, who had previously resigned as Associate Justice. But Rutledge sat through only one brief term of the Court. When it was learned that Rutledge had expressed vehement opposition to the Jay Treaty of 1894 with Great Britain, the Federalist Senate refused to confirm his nomination.

The harried President then offered the position to Patrick Henry, the famous Virginia patriot, who declined. The next choice was Justice Cushing, the eldest member of the Court, who reluctantly decided after his confirmation by the Senate not to accept the responsibility at his advanced age. Washington then named Oliver Ellsworth, who had been a judge in the highest court of Connecticut, a senator, and one of the authors of the Federal Judiciary Act of 1789.

In a very narrow sense the naming of John Marshall to be Chief Justice in 1801 might be regarded as a personal favor. Marshall was certainly a good friend and trusted advisor to President John Adams, who had previously offered him appointments as Attorney General and as Associate Justice of the Supreme Court. Marshall had declined both those posts. At the time of his nomination to head the Court he was serving as Adam's Secretary of State. But the cordial relations between them are scarcely worthy of mention in the face of Marshall's eminent qualifications for the office. A President cannot rationally be accused of cronyism when the friend on whom he confers an office is the best qualified citizen to discharge its duties.

When Thomas Jefferson became President, he was determined to water down the Federalist domination of the Court. Upon the resignation of Justice Alfred Moore in 1804, Jefferson wrote to Secretary of the Treasury Albert Gallatin: "The importance of filling this vacancy with a Republican and a man of sufficient talents to be useful, is obvious, but the task is difficult."2 His choice was not a crony but an able South Carolina lawyer, William Johnson, then only thirty-two, who had been a state legislator and judge of the state's highest court. Jefferson's next two nominees to the Supreme Court were also judges--Henry Brockholst Livingston of the New York Supreme Court and Thomas Todd, chief justice of the Kentucky Court of Appeals.

Good fortune seemed to flow from a series of curious ventures regarding the Supreme Court during the administration of James Madison. When Justice Cushing died in 1810, the Court consisted of three Federalists --Marshall, Samuel Chase and Bushrod Washington--and the three Republicans named by Jefferson. With a new appointment, the Republicans would have a majority. Jefferson hastened to write Madison: "The death of Cushing gives an opportunity of closing the reformation, by a successor of unquestionable republican principles."3 Jefferson's choice for the position was Levi Lincoln who had served as his Attorney General. Madison compliantly offered the position to Lincoln, and even after the latter declined because of his impaired eyesight and advanced age, the President sent the nomination to the Senate and Lincoln was confirmed. When he persisted in refusing to serve, Madison nominated Alexander Wolcott, a little-known Republican leader in Connecticut who for many years had been collector of customs. An indignant Senate rejected the nomination. Madison's third choice was John Quincy Adams, then minister to Russia. The Senate approved, but Adams declined partly because he was "conscious of too little law."

In one of the most inexplicable maneuvers in American judicial history, Madison then turned to Joseph Story, who, though only thirty-two, had been speaker of the Massachusetts House of Representatives and had served on term in Congress. Jefferson had opposed Story as a pseudo-Republican because of his opposition to the Embargo Laws. While many were appalled by this elevation of a supposed young radical, Story's thirty-four years on the bench demonstrated that he was one of the greatest legal minds produced by the U.S.A. and a consistent exponent of the constitutional doctrines laid down by Marshall.

President Andrew Jackson was no less eager than Jefferson to change the direction of the Marshall Court, but he was caught in a strange conflict of objectives. The vacancy on the Court when Jackson was inaugurated went to John McLean of Ohio, who had been an able Postmaster General under both James Monroe and John Quincy Adams and continued to hold that post briefly under Jackson. Apparently he was shifted to the Court because of his opposition to the use of postmasterships as political spoils.4 But McLean had no scruples about playing politics in his own behalf. Jackson exacted a pledge from McLean that he would not be a candidate for the Presidency while on the bench, but McLean threw down that understanding by actively or passively participating in four presidential campaigns.

When Gabriel Duval resigned from the Court in 1835, much to the relief of his brethren because of his deafness and disability, Jackson was accused of using the vacancy to pay a political debt. His Secretary of the Treasury, William Duane, had been dismissed for his refusal to withdraw the federal deposits from the Bank of the United States, and Roger B. Taney had been chosen to carry out that unpopular task. But the Senate later refused to confirm Taney as Secretary of the Treasury, and when Jackson rewarded him with Duval's seat on the Supreme Bench confirmation was again denied. This outcome, however, had more relationship to the political animosities over the bank than to Taney's judicial qualifications. He had been an eminent lawyer and political leader in Maryland and had served as Jackson's Attorney General. Chief Justice Marshall favored his confirmation. The subsequent nomination and confirmation of Taney as Chief Justice to succeed Marshall in 1836 therefore cannot be properly labeled an act of cronyism, even though Daniel Webster concluded that the Supreme Court was "gone."

Few Presidents have had a rougher time filling vacancies on the Court than John Tyler. His first maneuver, upon the death of Justice Smith Thompson, was to offer the position on the Court to Martin Van Buren, who was the leading candidate for the Democratic presidential nomination which Tyler hoped to claim for himself. But that crude effort to immobilize a rival was squelched before any nomination was made, and when Tyler named John C. Spencer of New York, the irate Whigs of the Senate rejected him.

The President's next move was to offer this position to two Philadelphia lawyers apparently because he was impressed by the arguments they had just made in a case before the Court. When John Sergeant declined on grounds of age and recommended his fellow townsman, Horace Binney (at the same time swearing the President's emissary to secrecy about the prior offer to him) a tender was made to Binney, who declined for the same reason and recommended Sergeant, with a plea that his own declination never be disclosed. Tyler then twice offered the judgeship to Silas Wright, Democratic leader of the Senate, who twice declined. In desperation, Tyler sent the name of Reuben H. Walworth, Chancellor of the State of New York, to the Senate in March, 1844. When a second vacancy on the High Bench occurred, Tyler offered the position to James Buchanan, who declined, and then nominated Edward King of Philadelphia. On the last day of its session the Senate laid both nominations on the table. Trying once more in the last days of his administration, Tyler withdrew the King and Walworth nominations and sent in the names of John Meredith Read of Philadelphia and Samuel Nelson of New York. Nelson was confirmed and served on the bench for twenty-seven years, but the Senate did not act on the Read nomination. Only one of Tyler's ten tries was successful. (See "Robin Hood, the Supreme Court and Congress," in Yearbook 1978.)

President Millard Fillmore expressed a view that many other Presidents have probably shared when he faced the necessity of finding a successor to Justice Levi Woodbury in 1851. In a letter to Webster, the President said he would like the new justice "to combine a vigorous constitution with high moral and intellectual qualifications, a good judicial mind, and such age as gives prospect of long service."5 His question to Webster was whether Benjamin Robbins Curtis of Boston would "fill the measure of my wishes?" Webster thought the position should be offered first to the famous Rufus Choate and if he declined, Curtis would be the logical appointee. This course was followed. Choate was not interested, and Curtis proved to be a stalwart on the Court, being one of the dissenters from Taney's incredible opinion in the Dred Scott case.

If ever a President had reason to "pack" the Supreme Court, it was Abraham Lincoln. He believed the Dred Scott decision to be an appalling error which the Court should overrule. But he did not seek to deprive the Court of its right to pass on the constitutionality of acts of Congress or to deny the validity of the Dred Scott decision in that particular case. His attitude was one of refusing to let that decision guide the policy of his administration and of trying to help the Court recover from that self-inflicted wound.

Lincoln's first appointment to the Court was Noah Haynes Swayne, an Ohio lawyer of high qualifications who won confirmation in the Senate by a vote of 38 to 1. The second vacancy was filled by Samuel Freeman Miller of Iowa, who had powerful support from the bar of that state and among the western congressional delegations. Lincoln's only concession to personal friendship in the selection of Supreme Court Justices was the appointment of David Davis, but Davis had been a judge for fourteen years in the Eighth Judicial Circuit of Illinois. If Lincoln had supposed that this judicial experience would insulate Davis from politics on the High Bench, he must have been disappointed. In 1863 Congress created a new (Tenth) Circuit for California and Oregon, and Lincoln's choice for the additional Supreme Court seat was Chief Justice Stephen Johnson Field of California, a Union Democrat who had powerful backing in the Pacific Coast states.

Lincoln's high-minded attitude toward the Court met with its severest test in the choice of a successor to Chief Justice Taney. When it was supposed that Taney's grave illness might be fatal, Justice Davis, speaking for himself and other members of the Court, urged the President to make Swayne Chief Justice. Davis also begged the President not to appoint Salmon P. Chase, presumably because of his excessive ego and his abrasive personality. Lincoln himself was well aware of Chase's offensive mannerisms from their close association when Chase was Secretary of the Treasury, but he had profound respect for Chase's ability. It was also evident that the imperious Chase was widely associated with the Chief Justiceship in the public mind and that his appointment would help to unify the Republican Party and the nation. Lincoln hesitated to make the appointment, not because of Chase's patronizing attitude, but because he feared that Chase might misuse the Chief Justiceship to further his presidential ambitions. The appointment was finally made after Speaker Schuyler Colfax had reminded Lincoln of Chase's comment that he would rather be Chief Justice than President and expressed confidence that, if appointed, Chase would dedicate the remainder of his life to the Bench.6 Unfortunately, Chase did not forsake his presidential ambitions, and in retrospect Lincoln's estimate of Chase's judicial capacity appears to have been exaggerated.

President Ulysses S. Grant's nominations to the Supreme Bench suggest a strange combination of personal considerations and regard for judicial talent. His first nominee was his Attorney General, Ebenezer Rockwood Hoar, who had been a judge of the Massachusetts Supreme Court. But Hoar's brusque manners and his disregard of "senatorial courtesy" in recommending judges for the newly created Circuit Court led to his defeat in the Senate. In an effort to placate the disgruntled Senators, Grant reluctantly named former Secretary of War Edwin M. Stanton to succeed Justice Robert C. Grier, who had sent in his resignation December 15, 1869, to take effect February 1, 1870. The Senate hastened to confirm Stanton, but four days later he was dead from a heart attack. This resulted in the curious spectacle of a justice (Grier) attending the funeral of his chosen successor.

Grant's next move was to name William Strong of Pennsylvania as a successor to Grier and Joseph P. Bradley of New Jersey to the judgeship still vacant because of Hoar's rejection. Both were eminently qualified, but the fact that the nominations went to the Senate while Chief Justice Chase was reading his adverse opinion in the Legal Tender Case resulted in charges that the President was attempting to pack the Court to reverse that decision. Whether ot not that was Grant's intention, the Justices he chose were able men, and the Legal Tender decision which they helped to overturn when the issue again came before the Court is now regarded as one of the Court's most unfortunate distortions of constitutional principles.

It was in choosing a successor to Chief Justice Chase that Grant encountered his greatest difficulty in regard to the Court. Although a wide array of judicial talent was available, Grant waited for six months and then offered the position to a close friend and political ally, Senator Roscoe Conkling of New York. Probably recognizing his own limited qualifications, Conkling declined the honor. Grant then nominated his Attorney General, George H. Williams, who had served as a judge in Iowa and Oregon but lacked the distinction associated with the highest judicial post in the land. Adverse criticism led to withdrawal of the nomination. Grant then turned to another personal friend, Caleb Cushing, a former judge and Attorney General of unquestioned legal learning, but Cushing was seventy-three years of age and a politician of highly unstable character. Grant's fifth choice was Morrison R. Waite of Ohio, who had had no judicial experience and had never argued a case in the Supreme Court. The relieved Senate confirmed the nomination, and Waite served with satisfaction for fourteen years despite his initial handicaps.

Few if any Presidents have spoken more persuasively of the need for energetic and experienced legal minds on the bench than William H. Taft. Having been a judge himself, Taft was alarmed by the disability he found in the Court when he entered the White House and resolved to give it new talent and vigor. Yet when Justice Rufus W. Peckham died in 1909 Taft, over the protests of Attorney General George W. Wickersham, gave the position to his old friend and former associate on the United States Circuit Court, Horace H. Lurton of Tennessee, who was sixty-five years of age.

Having made that concession to friendship, Taft nominated one of the country's greatest lawyers, Governor Charles Evans Hughes of New York, and elevated Justice Edward Douglass White, a Democrat, to the Chief Justiceship. All the subsequent vacancies during the Taft administration went to judges: Willis Van Devanter of Wyoming, who had been a judge of the United States Circuit Court; Joseph R. Lamar, who had served on the Supreme Court of Georgia; and Mahlon Pitney, former Chancellor of New Jersey and judge of its Supreme Court.

Taft's interest in the Court remained strong after his return to private life. When Warren Harding was elected President in 1920, Taft successfully lobbied for his own appointment as Chief Justice. He was also influential in bringing about three other Harding nominations to the Court--those of George Sutherland, Pierce Butler and Edward T. Sanford.

Louis D. Brandeis' effective work for Woodrow Wilson in the 1912 presidential campaign and their resulting friendship were undoubtedly factors in the nomination of Brandeis to the Court in 1916, but Brandeis was the country's most eminent "attorney for the people" and foe of monopolies. His reputation as a brilliant attorney and his subsequent distinguished service on the High Bench completely overshadow any personal element that may have influenced his appointment. It is interesting to note that President Wilson's first choice for the Court was James C. McReynolds, whose abrasiveness as Attorney General was embarrassing the President in Congress and the Cabinet. These two Wilson appointees came to occupy opposite extremes in the Court, especially in the 1930's when the New Deal cases were decided.

Charges of partisanship and special favor echoed through the Senate when President Herbert Hoover named Hughes Chief Justice in 1930, but here again the facts overwhelm superficial conjectures. The two men were indeed friends. They had been close working partners in the Harding and Coolidge Cabinets, and Hughes was active in Hoover's 1928 campaign. But his unique qualifications for the Chief Justiceship were so unassailable that the fight against him in the Senate turned out to be largely a partisan donnybrook.

At the time of the appointment rumors spread that Hoover had intended to appoint a much closer personal friend, Justice Harlan F. Stone, and that he had first offered the post to Hughes with the expectation that he would decline. This report seemed to gain credibility when a presidential secretary, George Akerson, gave White House reporters a tip that Stone was the President's choice. Actually, however, Attorney General William D. Mitchell had sounded out Hughes' inclination toward the Chief Justiceship before recommending Hughes to the President. So, in their discussion of a successor to Chief Justice Taft, Mitchell gave Hoover virtual assurance that Hughes would accept the post, and Hoover later denied that he had had any thought of naming Stone.7

In summary, cronyism has played only a minor part in the staffing of the Supreme Court. When appointments have seemed to reflect a high degree of personal favor or political debt-paying the Senate has often refused confirmation, and many charges of cronyism evaporate under impartial examination of the facts.

Some Presidents have been so eager to avoid any suspicion of personal or political motives in staffing the Court that they have crossed party lines. Lincoln chose a Democrat, Justice Field. Republican President Benjamin Harrison selected a Democrat he had come to know well when both were in the Senate, Howell E. Jackson. Taft elevated Justice White to head the Court. Hoover nominated Chief Judge Benjamin N. Cardozo of the New York Court of Appeals, a Democrat, on the advice of Chief Justice Hughes. President Franklin D. Roosevelt promoted Justice Stone, a Republican, to the Chief Justiceship on the eve of World War II in the interests of national unity. Analysts report that Republican Presidents have appointed nine Democratic Justices and Democrats have appointed three Republicans to the Court.8

While the motives of Presidents in selecting Justices have varied widely, there is much evidence of statesmanship, and most of the Presidents who have tried to impose their views on the Court have been disappointed. Once on the Court Justices have reacted to their own views of the law and the judicial function. The Court's high standing in public opinion results from the fact that it has customarily functioned as an independent tribunal with profound respect for its constitutional role.

Notes

1 Warren, Charles, The Supreme Court in United States History (Boston: Little Brown, 1929) Vol. 1, p. 32.

2 Ibid., p. 287.

3 Ibid., p. 404.

4 James, Marquis, The Life of Andrew Jackson (New York: Bobbs Merrill, 1937) p. 478.

5 Warren, op. cit., Vol II, p. 226.

6 The Oliver Wendell Holmes Devise History of the Supreme Court of the United States, Vol. VI, part one, p. 23.

7 Pusey, Merlo J., Charles Evans Hughes (New York: Macmillan, 1951) Vol. II, p. 652.

8 Guide to the Supreme Court (Congressional Quarterly, Washington, 1979) p. 684.


Copyright 1981 by the Supreme Court Historical Society